Consultant Thursdays: Just Who Owns The Work, Anyways?

Many of us have an entrepreneur streak in us, and what we’ve signed may limit that streak. It’s good to know your rights just so when it comes up, you’re prepared.

I’ve had this disscussion a few times with companies, sometimes with lawyers involved because of faulty NDAs and other work contracts, and the result was a common sense three point discussion as listed below. Non-disclosure and non-compete agreements are a different topic, which I’ll probably cover at some later point after a hard drinks.

This is a quick guide to the topic.

If you work for them as a full-time employee, they own the work and the copyright

For example, if you are a programmer, and there’s a bunch of this nifty code that you’re writing up, and you want to use it on your own application, there’s a good chance that you could get sued or cause a lot of problems at your work. Since most of us are on laptops nowadays, even using their equipment to design and build puts you at risk, and I would recommend that you do any of that work on your own time and on your own system.

Some companies, like Apple, go so far as emphasizing that even during your off time they own your ideas (for the chance that you are going to solve world hunger while watching Letterman), so if you are working for one of those companies, it might be a good idea to limit your ideas to sleeping. The smart companies discuss plans for you to profit off of those ideas in a business startup environment.

If you work for them as a contractor, and you haven’t signed a work-for-hire agreement, you own the work and copyright, are giving them implicit license to use it

Wikipedia has a great article about work-for-hire, but the best description I can think of is this: If you develop this new system that solves world hunger, and you develop this system on your client’s dime, there’s nothing stopping you from selling your system that solves world hunger down the street, and even more so, your competitors.

If you have designed something that is really cool, and you want to protect it, I recommend that you register it with the U.S. Copyright Office even if you don’t intend on reselling it. It’s more to protect yourself from the client.

If you work for them as a contractor, and you have signed a work-for-hire agreement, they own it

Signing that agreement gives them all copyright ownership to it and the right to control whatever you do. Smart consulting and development companies make you sign this contract. For most applications, signing one of these agreements isn’t that much of an issue because, frankly, what we do probably replicates some business process or application that isn’t terribly unique, so even if we were to own the copyright, it wouldn’t really matter, because it applies specifically to that work.

However, if there was something you invented that was unique and valuable as a business process (and I don’t mean inventing a shopping cart), you could patent it, and prevent others from using it only if you haven’t signed the work-for-hire agreement.

If you have any questions, speak with a lawyer

there are many experts in copyright and patent law that have much knowledge than I do, and if you are working on an idea that’s got a lot of potential, it’s best to talk to them. the money is worth it.

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